REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL CASE NO. E002 OF 2025
(Coram: Andayi W. F., J.)
REPUBLIC.................................................................................................THROUGH THE DPP
VERSUS
KOMBO KALIMBO KOMBO..…………………………………………… ACCUSED PERSON
R U L I N G
1. The accused person herein, Kombo Kalimbo Kombo is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) Laws of Kenya that on the night of 18 th and 19 th January 2025 at Bondeni village in Kiwegu sub-location in Lunga Lunga Sub-County within Kwale County jointly with others not before court murdered Gereza Mdoe Dena.
2. The prosecution called seven (7) witnesses to support the information.
3. The prosecution’s case against the accused person is that the deceased, Gereza Mdoe Dena had attended an open night disco party in company of PW 3, Mazera Ndurya Hamisi, PW 4, Wangoni Chupa Mdoe, among others when a group of about ten young men, among them the accused person, who had been causing a raucous at the disco charged at the three, who had taken shelter away from the commotion. Most of the young men were armed with various weapons and one of them hit the deceased on the head with a club on the head and the deceased fell down unconscious. PW 3 and PW 4 said that they identified the accused person among the group. The deceased was rushed home on a motor cycle and then taken to hospital but succumbed shortly thereafter.
4. PW 1, Jawa Dena Wangoni is the deceased’s uncle. He was on duty at Mutune primary school as a security guard on the material night when he was called by one Haji Said who informed him of the incident. He called and informed the deceased’s father and directed the caller to have the deceased ferried home and PW 1 proceeded there. The deceased was ferried home on a motor bike accompanied by Haji and when he arrived he was unconscious and not talking. He had an injury to the head. The deceased was then ferried to Perani hospital.
5. PW 2 Mdoe Dena Wangoni, is the deceased’s father. The deceased left home that evening while he was well. During the night his brother Jawa Dena, PW 1 called and informed him of the incident. The deceased was brought home by the motorcycle rider at around 3.00 a.m. He was bleeding from the head. He was unconscious and could not speak. He was taken to Perani hospital but passed on as they were waiting for medical attention.
6. PW 5, Mwatumbi Dena Mwanyasi is also an uncle of the deceased and was also alerted of the incident by Haji the same night. He was present at home when the deceased was taken there unconscious and then taken to hospital.
7. PW 6. Dr. Melaki Boy Juma, pathologist, conducted the post mortem examination on the body of the deceased at the Msambweni County Referral hospital and completed the post mortem form on 23 rd January 2025. She formed the opinion that the cause of death was traumatic brain injury due to blunt force trauma.
8. PW 7, PC Eric Morema was one of the officers who conducted investigations in the case and had the accused person arrested and charged with the offence.
9. Learned counsels for the prosecution and the defence did not make submissions at the close of the case for the prosecution.
10. I have considered the evidence tendered by the prosecution witnesses. At this stage, the issue for this court to determine is whether the prosecution has established a prima facie case against the accused person to warrant him to be placed on his defence.
11. Section 306(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) , provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is no evidence that the accused or any one of several accused committed the offence should, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
12. Section 306(2) of the CPC provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person or any one or more of several accused persons committed the offence, the court should proceed to put the accused on their defence and thereby the accused is supposed to present evidence in defense.
13. What constitutes a prima facie case to require an accused person to be called upon to offer a defence has been explained in the case of Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 335 , as follows:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution the case is merely one,
“which on full consideration might possibly be thought sufficient to sustain a conviction.”
This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather, hopes the defence will fill the gaps in the prosecution case.
Nor can we agree that the question whether there is a case to answer depends only on whether there is
“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.”
A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson, J., said that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively; that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “ prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”
14. From the above decision, it is imperative that for the court to find at this case that a prima facie case has been made out and that the accused person has a case to answer, there must be evidence sufficient to warrant a conviction. This court is, however, alive to the fact that at this stage, it should not make definitive findings on the evidence tendered thus far, even if it were to find that the accused person has a case to answer. The court is therefore not required to give a reasoned ruling at this point, as was held in the case of Festo Wandera Mukando v Republic [1980] KLR 103, that:
“... we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the Court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” is rejected, the Court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is an end to the case or the count or counts concerned.”
15. I am satisfied that a prima facie case has been established against the accused person to warrant him to be placed on his defence.
16. Accordingly, the accused person is hereby placed on his defence under section 306(2) of the CPC. His rights under Article 50 (2) (i) (k) and (l) of the Constitution, as read with Section 306 (2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, shall be explained to him.
17. Orders accordingly.
Ruling delivered , dated, and signed in Open Court and on the Virtual platform Microsoft Teams this 28 th day of July 2026.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused person present at Shimo La Tewa prison.
Kabiaro for the accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
HON. ANDAYI W. F.
JUDGE
HC. Cr. Case No. E002/2025 4 Murder-Case to answer
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL CASE NO. E002 OF 2025
(Coram: Andayi W. F., J.)
REPUBLIC.................................................................................................THROUGH THE DPP
VERSUS
KOMBO KALIMBO KOMBO..…………………………………………… ACCUSED PERSON
R U L I N G
1. The accused person herein, Kombo Kalimbo Kombo is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) Laws of Kenya that on the night of 18 th and 19 th January 2025 at Bondeni village in Kiwegu sub-location in Lunga Lunga Sub-County within Kwale County jointly with others not before court murdered Gereza Mdoe Dena.
2. The prosecution called seven (7) witnesses to support the information.
3. The prosecution’s case against the accused person is that the deceased, Gereza Mdoe Dena had attended an open night disco party in company of PW 3, Mazera Ndurya Hamisi, PW 4, Wangoni Chupa Mdoe, among others when a group of about ten young men, among them the accused person, who had been causing a raucous at the disco charged at the three, who had taken shelter away from the commotion. Most of the young men were armed with various weapons and one of them hit the deceased on the head with a club on the head and the deceased fell down unconscious. PW 3 and PW 4 said that they identified the accused person among the group. The deceased was rushed home on a motor cycle and then taken to hospital but succumbed shortly thereafter.
4. PW 1, Jawa Dena Wangoni is the deceased’s uncle. He was on duty at Mutune primary school as a security guard on the material night when he was called by one Haji Said who informed him of the incident. He called and informed the deceased’s father and directed the caller to have the deceased ferried home and PW 1 proceeded there. The deceased was ferried home on a motor bike accompanied by Haji and when he arrived he was unconscious and not talking. He had an injury to the head. The deceased was then ferried to Perani hospital.
5. PW 2 Mdoe Dena Wangoni, is the deceased’s father. The deceased left home that evening while he was well. During the night his brother Jawa Dena, PW 1 called and informed him of the incident. The deceased was brought home by the motorcycle rider at around 3.00 a.m. He was bleeding from the head. He was unconscious and could not speak. He was taken to Perani hospital but passed on as they were waiting for medical attention.
6. PW 5, Mwatumbi Dena Mwanyasi is also an uncle of the deceased and was also alerted of the incident by Haji the same night. He was present at home when the deceased was taken there unconscious and then taken to hospital.
7. PW 6. Dr. Melaki Boy Juma, pathologist, conducted the post mortem examination on the body of the deceased at the Msambweni County Referral hospital and completed the post mortem form on 23 rd January 2025. She formed the opinion that the cause of death was traumatic brain injury due to blunt force trauma.
8. PW 7, PC Eric Morema was one of the officers who conducted investigations in the case and had the accused person arrested and charged with the offence.
9. Learned counsels for the prosecution and the defence did not make submissions at the close of the case for the prosecution.
10. I have considered the evidence tendered by the prosecution witnesses. At this stage, the issue for this court to determine is whether the prosecution has established a prima facie case against the accused person to warrant him to be placed on his defence.
11. Section 306(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) , provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is no evidence that the accused or any one of several accused committed the offence should, after hearing, if necessary, any arguments which the advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.
12. Section 306(2) of the CPC provides that when the evidence of the witnesses for the prosecution has been concluded and the court is of the opinion that there is evidence that the accused person or any one or more of several accused persons committed the offence, the court should proceed to put the accused on their defence and thereby the accused is supposed to present evidence in defense.
13. What constitutes a prima facie case to require an accused person to be called upon to offer a defence has been explained in the case of Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 335 , as follows:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution the case is merely one,
“which on full consideration might possibly be thought sufficient to sustain a conviction.”
This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather, hopes the defence will fill the gaps in the prosecution case.
Nor can we agree that the question whether there is a case to answer depends only on whether there is
“some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence.”
A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true, as Wilson, J., said that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively; that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a “ prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”
14. From the above decision, it is imperative that for the court to find at this case that a prima facie case has been made out and that the accused person has a case to answer, there must be evidence sufficient to warrant a conviction. This court is, however, alive to the fact that at this stage, it should not make definitive findings on the evidence tendered thus far, even if it were to find that the accused person has a case to answer. The court is therefore not required to give a reasoned ruling at this point, as was held in the case of Festo Wandera Mukando v Republic [1980] KLR 103, that:
“... we once more draw attention to the inadvisability of giving reasons for holding that an accused has a case to answer. It can prove embarrassing to the Court and, in an extreme case, may require an appellate court to set aside an otherwise sound judgment. Where a submission of “no case” is rejected, the Court should say no more than that it is. It is otherwise where the submission is upheld when reasons should be given; for then that is an end to the case or the count or counts concerned.”
15. I am satisfied that a prima facie case has been established against the accused person to warrant him to be placed on his defence.
16. Accordingly, the accused person is hereby placed on his defence under section 306(2) of the CPC. His rights under Article 50 (2) (i) (k) and (l) of the Constitution, as read with Section 306 (2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, shall be explained to him.
17. Orders accordingly.
Ruling delivered , dated, and signed in Open Court and on the Virtual platform Microsoft Teams this 28 th day of July 2026.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused person present at Shimo La Tewa prison.
Kabiaro for the accused person.
Vallerie (Ms) for the State
Ummu - Court Assistant
HON. ANDAYI W. F.
JUDGE
HC. Cr. Case No. E002/2025 4 Murder-Case to answer